In medicine, reputation is everything. Case in point: a recent survey found that online reviews and star ratings are the most important factor for patients when choosing a new healthcare provider.

Yet, one difficult or negative encounter with a patient could be all it takes to tarnish that rosy online image.

To combat online trashing by a disgruntled patient, some doctors have turned to mutual privacy agreements. These contracts vary in their specifics but often involve patients agreeing not to write negative reviews as a condition of care.

Some agreements state that the doctor or office will “own” any online reviews; some require patients to agree to never post a negative review; some also demand that patients stop their family and friends from saying or writing anything negative.

How Ethical Are These Agreements?

Not very, according to Robert I. Field, JD, MPH, PhD, professor of law and health management and policy, Drexel University, Philadelphia, Pennsylvania.

“They’re not illegal, but they seem extremely sleazy and do raise ethical questions,” said Field. “I wouldn’t sign one as a patient, and I’m sure a HIPAA [Health Insurance Portability and Accountability Act]–savvy patient wouldn’t sign one.”

In his experience, Field said these agreements often begin with “laudable-sounding sentences” about respecting patient privacy and HIPAA, “which is basically saying that the doctor won’t violate the law, which isn’t much of a promise.

“These contracts also suggest to me that the doctor has some reason to be concerned about getting negative reviews,” Field said.

Ron Harman King, JD, had a similar take on mutual privacy agreements.

“A physician either implicitly or explicitly asking a patient to refrain from posting an online review is saying the doctor doesn’t trust the patient,” said Harman, CEO of Vanguard Communications, a healthcare marketing and practice improvement company based in Denver, Colorado. “Similarly, the physician is suggesting he or she may not be trustworthy.”

Medscape Medical News reached out to two medical practices that use mutual privacy agreements. Both declined our request for an interview.

Harman said any competent physician who routinely insists on such a pact with patients is treading on “thinner reputational ice than taking his or her chances on online reviews.”

Word is likely to get out about such “dodgy” maneuvers, Harman said. “After all, the prospective patient who refused to sign the agreement can then go online and post about the doctor’s insistence on the patient’s silence.”

Hollow Intimidation

Field said it’s also unclear how a doctor would enforce such an agreement if a negative review was posted online. “I think it’s more for intimidation and just not a great way to run a practice.”

There is also the worry that a patient could claim that they were coerced into relinquishing their First Amendment right by signing a privacy agreement, Field said. And there’s a “good chance that a judge would strike this down,” he added.

Jeff Segal, MD, JD, CEO of Medical Justice Services Inc, said mutual privacy contracts have “fallen out of favor and essentially abandoned.”

Segal’s company, which manages online reputations for doctors and dentists, used mutual privacy agreements until 2011, when they retired them in response to a class-action lawsuit over the contracts. They advised their client members to retire them as well, Segal said.

In 2016, with passage of the Consumer Review Fairness Act (CRFA), Congress made such agreements “practically unenforceable,” Segal said, “meaning businesses are foreclosed from using template agreement in a blanket way to stifle commentary before they receive services.”

The CRFA protects an individual’s ability to share their honest opinion about a business’s products, services, or conduct in any form, including social media.

When it passed, Medical Justice sent a notice to clients that “Congress had spoken,” Segal said.

Weighing in on this topic, Neil Reisman, MD, JD, a board certified plastic surgeon in Houston, Texas, noted that courts have upheld an individual’s right to free speech and to make a comment about a practice as long as it’s not slanderous or defamatory per se, and agreements that prohibit such comments are “questionable.”

Reisman, who does not use privacy agreements, has this advice: “If you really want to avoid risk of a negative review, then pick your patients really carefully. It’s all about patient selection. As long as you are not discriminating, you have a right to not accept a patient.”

Doctors don’t have to accept all patients, Reisman said, and “a good way out is to say to the patient, ‘I’ve had a chance to reflect on your goals, and I don’t think I’m skilled enough to give you the results that you’re seeking.’ The patient will likely thank you for your honesty.”

Most Patients Love Their Doctors

Harman said he can understand the impulse to insist on patients’ public silence because “online reviews can be quite unfair in particular to healthcare providers.” He’s even seen “persuasive evidence” in rare cases of fake reviews posted by competitive medical practices.

But the fact is that most patients “resoundingly love their doctors,” Harman said.

His company recently surveyed more than 34,000 online doctor reviews. They found that the vast majority of online patient complaints were about customer service, not quality of care. Only 4% of complaints cited care issues.

Two thirds of reviewers gave 4- and 5-star reviews of their healthcare experiences. This accounted for about three fourths of the content (as measured by word count) of all reviews.

Less than one third (32%) gave 1- and 2-star reviews, which accounted for only 23% of the content.

“It’s not hard to earn patients’ respect and gratitude,” Harman said.

Field, Harman, Segal, and Reisman have disclosed no relevant financial relationships.

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